rbs Ordinary Cause citation £15k unsecured loan and 1.5k overdraft - Glasgow **WON+COSTS**

[leedoe]

I think its probably an idea to go in "tooled up" just to show them that you are serious, have researched what you are going to say and give them a run for their money. But that's a purely personal view.

 

I will write out my arguments this week but as usual all help will be appreciated from you guys

[paulwlton]

Could you post up the writ/poc and the copy.

Edited March 2, 2010 by paulwlton

[leedoe]

Hi rory the initial writ states CONDESCENDENCE first part is just about jurisdiction .No2 the defenders jointly and severally obtained loan facilities from the pursuers on a personal loan branch account numbered xxxxxx and as at 10 november 2008 has drawn on the said account to the extent (£15k ish) which is the sum sued for in crave one.The said sum is payable on demand.No3the defenders jointly and severally obtained loan facilities from the pursuers on a advantage gold account now numberedxxxxxxx and as at 10 november 2008 has drawn on the said account to the extent of (1.5k ish) which is the sum sued for in crave two.The said sum is repayable on demand.No4The pursuers have called upon the defenders jointly and severally for payment of the sums but the defenders refuse or at least delay to make payment and this present action is accordingly necessary.PLEA IN LAW The defenders having jointly and severally obtained monies on loan from the pursuers and the same not having been repaid when due.Decree therefor should be granted as craved.The bank told me over the phone the agreement was lost.I haven,t asked for any other documents yet and i dont think we qualify for legal aid both me and wife working .Recieved court timetable today my defence has to be in by19/01/09.Any adjustments to the writ or defences by 13/03/09.preliminary pleas and grounds in by23/03/09andOptions hearing on27/03/09. any help you can give would be appreciated.

This was the initial writ

[leedoe]

 

and this is were their at now

[paulwlton]

and this is were their at now

 

Can you post the "true" copy

[leedoe]

[attach]6040[/attach] received this reply from sols today any advice most welcome

This is the "true" copy they supplied

[seriously fed up]

I think the options hearing was today Leedoe. How did it go?

[paulwlton]

I see they've charged interest on a fee entered into the total amount charged for credit. Because Walker is being appealed to the supreme court the case should be stayed pending the outcome.

[leedoe]

Had my options hearing on friday they asked for a continuation so they could respond to my rule 22.1:confused: i asked for dismissal due to lack of DN judge gently reminded me that was something to argue at debate.He then asked if that is what i wanted to do i agreed so we go to debate on May 17.He never told me what if anything he requires regarding case law statutes etc.Does anyone know if RBS charge for a default notice regarding a loan?, i know they charge 30 quid for a default on an overdraft.

[leedoe]

I see they've charged interest on a fee entered into the total amount charged for credit. Because Walker is being appealed to the supreme court the case should be stayed pending the outcome.

Could you expand on this Paul

[seriously fed up]

OK, sounds like its half time and you are a goal up. Of course if you are Tony Mowbray you will still expect the ref to do something outrageous in the second half, so we need to get you prepared for the legal debate in May. But that is two months away so plenty time, but we need to use it wisely (ie preparing from now and not the beginning of May).

It looks to me as if you have given them plenty to think about with your R22.1, though, tbh (and correct me here if necessary) I dont know why as I think most of this was in your defence originally.

I THINK you should get documents from the court indicating what elements of the case the sheriff reckons the debate will focus on. What you take along, though, is really up to you. The more/ better its researched - the more statutory terms/ Statutory instruments/ judgements that you find that are on "your side" the stronger the case will be. Its all about preparation.

In this respect, having Paul on the team will be a big help as I have suggested already. I think what we need to know from him is Walker and who? If the case is going to the Supreme Court then there will be reports/ papers on it available through a google search (eg put in Walker v Smith). My only problem with this is that, if these were decisions reached in the (English) Court of Appeal and the case has followed that route, then the stay may not apply in Scotland as the English Court of Appeal has no direct authority up here. On the other hand, the fact its being heard in the Supreme Court (which does have authority in Scotland) is an argument for the case being delayed till the Court have reached their decision on Walker v ?

But look, well done. They wanted a continuation, you didnt so at least a small win for you. Now on to the debate, but first the preparation, which basically needs to focus on finding every case you can that supports your position. One book that you might want to track down a copy of Goode's Consumer Credit law and Practice. This is the "bible" for this area, but its £900 a time and you pay for the updates. I know there is one in Glasgow Uni Library, but I dont know how you would get in there (you dont know a friendly student do you?). The other possibility is the National Library in Edinburgh - but if you were to go there, I would phone first to check you will get access (there was something about it being in the Advocates' Library). Another thing to think about is going to Govan Law Centre - Govan Law Centre - to get advice. They are pretty much under siege, but are very good imo (one of the reasons they are under siege), but they might be prepared to give you a crash course (or even a reading list) for the law underlying your case (though if you dont live in Glasgow they may well not see you - see ref to be under siege).

The other thing of course that you can do is to search this site for situations that have some sort of connection (ie dont need to be the same, just a similarity) to find cases that might help you (eg to learn what to watch out for) and might offer you support (ie where the defender has won). Probably better if these are in Scotland, but at the end of the day its the same Act being applied and the major differences should be purely procedural. To do this, use the search button under CAG announcements- its in a line with other services like user cp, faq, calendar etc.

You might think that you already have enough to deal with the debate, but trust me, you dont. You can never have enough information - that's your ammunition. Its good that the debate wont be till May.

As for how much they charge, I dont think they charge for a default notice, though for sure they charge if you dont pay on the right day (eg returned d/d). Why not phone them up and ask them? Or go into a branch - they have leaflets on most other things, I would have thought they would have one on charges. Should be in the T&Cs, whether you signed these or not? Also, you could check your bank statements - they should have sent statements (annually at least) for the loan. So if they have charged it should be there

But well done again

Edited March 8, 2010 by seriously fed up

[leedoe]

Hi SFU thanks for replying regarding, default charges i have the loan accounts ie all the payments but there are no charges in there so either they dont charge for a default or they haven,t defaulted me and since they haven,t produced a DN then that seems more likely.I have been looking for threads regarding creditors going to court without issuing a DN but can,t find any they all seem to be about invalid DN.Do you no of any? and also what are their prospects if they don,t have one?Regarding the debate am i correct in assuming the record is closed and all that will be debated is the written pleas?

[Coactum]

All too often I find that a Google search helps me better than the site search resource. Go to google and try something like

site:consumeractiongroup.co.uk "Default Notice" + "not served" + "Sheriff court"

[seriously fed up]

Yes loads of stuff about defective DNs but not much about no DN at all. Which is very frustrating as I have been looking for something about this as well.

The law is stated in s87 of the CCA

87.—(1) Service of a notice on the debtor or hirer in accordance with section 88 (a "default notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,—

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

In other words Leedoe, no default notice, then the creditor is "not able to take the next step". You might wonder where that phrase comes from? The case is Woodchester Lease - you can find it here http://www.consumeractiongroup.co.uk/forum/bailiffs-sheriff-officers/125994-woodchester-lease.html (post 2 - its a pdf to be downloaded). Its not exactly what you are looking for as the DN in this case was issued but was found to be non-compliant (overstating what was owed). But the important thing is the statement in the judgement that without a DN they cant proceed to terminate or demand earlier payment (the next step) - basically any of a-e. This is the kind of thing you will need in the debate - determined cases where the judgement is positive for you. They will claim this is different - it involves the hire of a photocopier - but its still the Consumer Credit Act and the section of the Act is headed "Default Notices" which are the same whether it finance or hire of goods.

This would be an argument - if the Sheriff will let you put it to debate - for getting the case dismissed (ie no DN, sir so they cant enforce" - that is (e)btw)

What I am not sure about with this are the subsequent consequences - you get the case dismissed so they send you a compliant default notice the next day and the whole thing starts again. One approach to this that I tracked down you can find here - http://www.consumeractiongroup.co.uk/forum/debt-collection-industry/250597-no-copy-default-notice.html. Particularly interesting is post 3, especially this bit " Without a copy of the original you are unable to assess whether the default notice was valid and effective.

Of Course you need to keep this quiet until the account is terminated.

Then you argue that this is termination was unlawful and resulted in you being released from your obligations under the alleged contract.

Also if no enforceable CCA exists then the default notice is invald as how can you be defaulted on a contract that never existed." As someone else points out, they hardly ever keep copies of DNs - you would need to get a SAR into RBS double quick, because if there is no sign of a DN on their records that is pretty good proof that they never sent one. If it is on your record then it might still be open to you to claim that they didnt, but it would be more difficult ("oh yes we did", "oh no you didnt")

Do you have to work within the record? Yes, as far as I understand it, yes you do. But while you cant raise additional points (or heads of discussion) you can add to your ammunition of cases and arguments to sustain your view on each of the points to be discussed during the debate.

Edited March 11, 2010 by seriously fed up

[Coactum]

I understood that an erroneous Default Notice cannot be subsequently corrected by issuing a valid one. By raising action they have in effect defaulted the contract by demanding repayment in full. As such they cannot issue a fresh DN

[seriously fed up]

Yes, I think you are right Coactum. But that's not the problem. Its not a defective notice that we are dealing with - its the situation when there is NO notice that we are dealing with.

As you say, if there is a defective DN and they terminate on the basis of this, then the lender is screwed. BUT, if there is no DN then they have no right to seek enforcement at court, for instance. So - in Leedoe's case - the case gets dismissed and we are all happy . BUT, what is to stop them sending him a default notice (from their point of view, hopefully compliant) the next day and the whole merry-go-round starts all over again.

The conclusion of this - IF the above is right - would be that its better (or less bad) for a lender to send NO notice than to send one which is defective in some way. But I just dont see how that can be correct - or at least logical. I mean which is worse - not to bother (no DN) or to try but get it wrong (a defective DN). But I dont see any other conclusion. I was hoping that someone could help us out with this.

Leedoe's propblem in this respect was particularly interesting to me as right now I am in the same situation with another lender with a credit card - no default notice, no termination notice, an assignment that they assure me was on 7th October last year but is actually dated 31st December, and was sold on to Cabot Financial in October (ie three months before the apparent assignment of which I was only told when I asked some questions) who are now trying to hassle me, even though they know that the original lender (Vanquis) are way in default with a SAR - sort of "while you are in correspondence with Vanquis we will be looking to collect". At the same time, even as an online application, sending me a screen grab of my personal details - most of which you could find on the voter's role - and a random set of T&Cs is all they have to make the case enforceable. The problem I have is that this agreement was post 2007 (ie 127(3) doesnt apply), so something that would make the agreement totally void would be good (more than good). I could say they dont have an agreement - just a screen grab. But they could produce statements. So I am looking for "something else".

[Coactum]

My argument, perhaps flawed, would be that by raising proceedings they have demanded payment in full and although not necessarily worded as a default notice it is because why would a lender seek recovery if the debtor was not thought to be in default. As such my response to any subsequent DN or further legal action would be that in raising the first action they issued a DN of sorts and as such cannot now issue another.

 

This no doubt needs further work to ratify SFU but I’m sure you can appreciate the direction that I’m trying to take this argument. Does it help?

[seriously fed up]

Hi Coactum/ Leedoe, i have been doing some digging around about no default notice and the consequences of thereof. Its been a journey. First thing I found was here http://www.consumeractiongroup.co.uk/forum/legal-issues/182664-help-i-have-just-8.html

"(4)No Default Notice was ever served to your loan or your current account. Simply put – if they were to demand the balance from you (because you fell behind with payments) without issuing a DN you would be within your rights to ignore this request – if they then terminate the agreement they effectively lose the right to ever demand the full balance owing under the agreement.

 

In your case – the creditor has issued no DN that doesn’t comply with the regs so this is a breach of s88 of the CCA 1974 – it is therefore invalid – they proceeded to terminate the account without issuing a compliant DN and this is a breach of s87(1) (a) of the CCA 1974.

 

A non compliant DN must be viewed as not satisfying the requirements of the act – effectively it is the same as not issuing one in the first place and the net result is the same as above."

 

So, as I see it either a duff DN or no DN has the same consequence - they cannot use this to terminate the account. But they havent terminated it either - they have gone to court without either default or termination.

 

So on we go - more looking - thank God for Google - and we come up with this at Consumer Credit

 

"Before a Creditor can terminate your credit agreement early for non payment they have to follow the procedures required under the Consumer Credit Acts 1974 & 2006. If they have not complied with the statutory Default and Termination procedure and the Creditor issues court proceedings then the Creditor is only entitled to the arrears at the time they originally defaulted you, not the whole amount."

 

So cleary they cannot demand the full amount - only the arrears, it says, at the time of default. But if there has been no default notice what are the arrears as its the arrears at the time of the duff DN?! ****!

 

Perhaps the best - so far - has been this http://www.consumeractiongroup.co.uk/forum/legal-issues/164325-date-issue-re-default.html

"DEFAULT NOTICE

 

The Need for a Default notice

• Notwithstanding the above, it is also drawn to the courts attention that no default notice required by s87 (1) Consumer Credit act 1974 has been attached to the petition.
  

 

• It is denied that any Default Notice in the prescribed format was ever received and the Defendant puts the Claimant to strict proof that said document in the prescribed format was delivered to the defendant
  

 

• Notwithstanding the above points, I put the claimant to strict proof that any default notice sent to me was valid. I note that to be valid, a default notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237)
  

 

• Service of a default notice is a statutory requirement as laid out in sections 87,88 and 89 Consumer Credit Act 1974. Section 87 makes it clear that a default notice must be served before a creditor can seek to terminate the agreement or demand repayment of sums due to a breach of the agreement. therefore without a valid default notice, I suggest the claimants case falls flat and cannot proceed and to do so is clearly contrary to the Consumer Credit Act 1974
  

 

• Failure of a default notice to be accurate not only invalidates the default notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is a unlawful rescission of contract which would not only prevent the court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119"
  

I have highlighted the most relevant part which tends to suggest that no default notice (see first bullet) would be an unlawful recission of the contract by the lender which would prevent the court from granting enforcement.

However, I havent been able to find a case where this has been successfully argued in Scotland Leedoe - but it is something else to chuck at them.

[Coactum]

well done SFU, a good bit of research

[seriously fed up]

Done a wee bit more digging around and found this helpful http://www.consumeractiongroup.co.uk/forum/royal-bank-scotland/243410-rbs-mint-invalid-dns.html - see esp post 8. If I have understood this, the legal point is that a creditor MUST issue a compliant DN before he is able, under the terms of the CCA to do any of the following

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum, or

© to recover possession of any goods or land, or

(d) to treat any right conferred on the debtor or hirer by the agreement as

terminated, restricted or deferred, or

(e) to enforce any security.

So with a non-compliant DN - or NO DN - if they move to any of the above (most commonly a or b) and they are into unlawful recission

So, if they do terminate or demand early repayment (eg the balance of the account) without a DN then they have unlawfully terminated the agreement,as they dont have the legal authority without a DN (or one that is compliant) and as with Woodchester, it could prevent the court enforcing the debt, and indeed as with Kpohrarar, you could take them for damages.

[leedoe]

Thanks for all the advice very much appreciated.Sorry i haven,t been on for a while , just a quick update received a letter from their sols asking to do a deal to save further costs blah blah so i phoned and told them no deal on the loan and i offered a grand for the lot so they said they will get back to me this week.

[seriously fed up]

Good to hear from you - wondered how you were getting on. If its worth a grand to you to get them to go away then that sounds good business to me. One wee word, though - if they do bite, get them to agree to a motion of absolvitor - this is from the Shelter site

"Absolvitor - If the sheriff grants 'decree of absolvitor' it means that they've decided that the defender has won the case. It means that it's the end of the matter and the pursuer can't raise another action about the same thing." - its the last bit that's important so they dont sell the debt to someone else and they come after you.

[leedoe]

Thanks for the advice SFU if they do accept the grand then i will make sure i get them to agree to it.But whatever they come back with i will certainly run it by you.

[seriously fed up]

Just something to think about. If they take the grand the probability is that you wont hear any more about it ever. But absolvitor removes the small chance that you might. If they get difficult over it, you might need to decide whether putting the whole thing to bed just now for a grand is/ is not worth accepting a simple dismissal.

But, I would say the fact that they are trying to negotiate is a pretty clear sign that you do have them very worried. So well done you!

[leedoe]

Just something to think about. If they take the grand the probability is that you wont hear any more about it ever. But absolvitor removes the small chance that you might. If they get difficult over it, you might need to decide whether putting the whole thing to bed just now for a grand is/ is not worth accepting a simple dismissal.

But, I would say the fact that they are trying to negotiate is a pretty clear sign that you do have them very worried. So well done you!

 

Thanks for advice SFU but it is not well done me it is well done to you guys on CAG oops and gals .I haven't heard a thing from sols so i will have to carry on as though i will be going to debate on the 17th.

Edited May 4, 2010 by leedoe
spelling